As more jurisdictions enact leave laws and expand nondiscrimination requirements, you may need to take a closer look at your company's attendance policies. Provisions that suggest employees will automatically be disciplined for missing work may not be compliant if the absence is protected under the law. Here are three scenarios to consider.

Scenario #1: My employee has been struggling with his job performance for several weeks. Now he has the flu and told me he is going to be out for four days. Can I write him up for the performance issues once he returns?

If the leave is protected by federal, state, or local law, you cannot count the leave against the employee when evaluating his performance. Paid sick, and many other, leave laws generally prohibit employers from taking an adverse employment action against an employee for using the time off they have earned, or for otherwise exercising their rights under the law.

It's a best practice to address performance issues as they arise. If you need to address a performance or conduct issue following an employee's return from a protected absence, make sure you have prior documentation indicating that the problem has been ongoing and is unrelated to the leave.

Scenario #2: Our policy calls for disciplinary action following a certain number of absences. Could this be problematic?

These types of policies are commonly referred to as no-fault attendance policies. No-fault policies can be problematic since they generally subject an employee to a specific form of discipline if they are absent or tardy a certain number of times, regardless of the reason. If the absences are protected under the law, such as the Americans with Disabilities Act or paid sick leave, the employer is not permitted to count the absence(s) against the employee.

If you suspect an employee is abusing their leave entitlement, you may be able to request medical certification. Many sick leave laws permit employers to ask for documentation, such as a doctor's note, but only after an employee has been absent for a certain number of days. Even in the absence of such a restriction, consider what, if any, documentation would be reasonable to require from employees and apply your policy consistently.

Scenario #3: An employee hasn't been to work in three days and we haven't heard from her. Can I terminate her and cite our 'No-call/No-show' policy?

No-call/no-show situations should be carefully reviewed on a case by case basis. Extenuating circumstances, such as a serious accident, emergency, or illness may prevent employees from giving notice. This is particularly important when the employee's absence is protected under a law where the employee may not be required to provide advance notice. Before automatically terminating the employee, contact her to find out the reason for the absence, request documentation within the limits of the law, and decide whether or not the absence is protected.

If, after fully evaluating the circumstances, you determine that the employee has abandoned her job, carefully consider next steps. Be sure to comply with all applicable laws and act consistently with how you have handled similar situations in the past. You may want to work with legal counsel during this review, especially if the decision involves termination.

Additional Considerations:

Here are some additional guidelines to consider before disciplining employees for attendance reasons:

• Review leave policies. Review any policies related to leave and ensure they are compliant with all applicable federal, state, and local laws. Draft leave and attendance policies carefully and include nondiscrimination and anti-retaliation provisions. Encourage employees to come forward with complaints and provide a process for employees to report suspected violations.
• Train managers. Provide supervisors and HR personnel with training on company policy, including how to properly track attendance, and how to enforce your attendance, leave and other policies. They should be ready to handle various leave requests, recognize potential policy violations, and address discrimination or retaliation complaints.
• Document and review decisions. Carefully review all employment decisions to ensure they are based on legitimate business reasons. Be consistent with how you have handled similar situations in the past and make sure you have appropriate documentation to support all decisions.

Conclusion:

With more jurisdictions enacting leave laws and nondiscrimination protections, disciplining employees for absenteeism has become increasingly complicated. Carefully develop attendance policies that align with your obligations under all related laws and train supervisors on how to properly apply your policy.